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LGBT families across the country take many different forms. There is no “one size fits all” when it comes to legally protecting our families. Several states currently allow same-sex marriage, civil unions, domestic partnership registrations, or other forms of relationship recognition. Unfortunately, in the majority of our country, same-sex relationships are not legally recognized at all unless couples take action to seek protections through legal documents. It is best to consult with an attorney who practices law in the state where you live to get the most protection you can for your family.
The good news is that there are many steps we can take to provide protections similar to those enjoyed by our opposite-sex married counterparts.
The first step is to make sure you have the basic estate planning documents. A last will and testament, a durable financial power of attorney, and a health care document, which may be called a health care advance directive, medical proxy, health care power of attorney, or living will, depending on your state.
A last will and testament allows your partner to inherit all your property, and to be appointed by the court as your personal representative or executor. This means that when you die, your biological family has no legal right to show up with the moving van to take your personal property and lock your partner out of your home.
Your will can also name your partner as guardian of your children if you are the only legal parent and your partner does not have rights as a second legal parent. Otherwise, the court in your state might name a biological family member instead of your partner as your children’s guardian. If you and your partner should die at the same time, you can set up a trust fund for your minor children and name someone you trust to be in charge of the children’s money, set limits on what the money should be used for, and specify when they should receive the balance of their trust funds. (Usually not age 18 when legally they are adults, but not yet equipped to handle money.)
A health care document allows you to name your partner or other close friend to be the primary person for hospital visitation and medical decision making authority, up to and including the decision to remove you from life support under certain medical conditions, and to handle your funeral wishes. Without this form, your biological family will be in charge of those decisions, and your partner may be excluded from your hospital room. No matter how “married” you consider you and your partner to be, even if you have lived together for 50 years, were married in Canada, or a state that allows same-sex marriage, if you live in a state that does not recognize same-sex unions from other states, without this piece of paper, you have no legal rights as a couple.
But wait! You don’t have all your rights just by having this health care document signed. It doesn’t do you any good if it is sitting home in a drawer or in a safe deposit box. If an emergency strikes, you don’t want to waste valuable time running home to get your documents when you should be heading for the hospital. You must have it with you and available to show at the hospital. I always advise my clients to keep copies in the glove boxes of their cars, and to carry a copy in their carryon luggage if they travel together by airplane. A good rule of thumb is to expect discrimination, and be prepared for it by having your health care documents quickly available if a medical emergency arises.
A durable financial power of attorney allows you to appoint your partner to handle your financial affairs if you are unable to handle them for yourself. If you have joint bank accounts you would not need a power of attorney to write checks on that account, but if the mortgage is only in your partner’s name, the power of attorney gives you the authority to deal directly with the mortgage company on behalf of your incapacitated partner.
If you and your partner have minor children and only one of you is a “legal” parent, it is important to have a power of attorney for minor child drawn up as well, so that the legal parent can delegate authority to the other parent to take the child to the doctor, have access to the child’s medical records, pick the child up from school, and perform other day-to-day tasks of parenting.
Kathleen Womack is in her 26th year of practicing law in Georgia, with a focus on estate planning, domestic partner agreements and dissolutions, and second parent adoption. More information is available at www.kwomacklaw.com.
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